Recently in Non-traditional families Category

After the historic 2013 decision by the Supreme Court of the United States in US v. Windsor (570 US ___ ), many same-sex couples got married. This enabled a US citizen to petition successfully for a foreign spouse and for that spouse to get Legal Permanent Resident status, the so-called "green card." Our offices in Hollywood, Pasadena, and Palm Springs has handled many, many of these cases, all successfully.

To ensure that green cards are not obtained through false marriages, the Immigration Marriage Fraud Act (IMFA) requires a couple to file Form I-751 Petition to Remove Condition on Residence if the couple was married for less than two years on the day the green card was granted.

If you received your green card within the last two years based on marriage to a US citizen or green card holder, and if you wish check to see whether you are required to file the I-751, look at your green card. Under "Category," if you see CR or CR-1 or CR-6 -- if the two letters are CR, then you must file the I-751 before your green card expires. If you see CR-1 or CR-6 and your green card has already expired, seek legal assistance immediately.

Under "Category," if you see IR-1 or IR-6, then you are not required to file the I-751.

Remember that if the I-751 is not filed on time, or if it is not accompanied with appropriate documents to demonstrate that the couple is living is a married life together, or if there has been a separation, divorce, or death, then USCIS may question or deny the case. Be sure to attach appropriate documentation to the I-751.

Recently, we have had lots of inquiries from Los Angeles and Riverside counties about removal of condition on residence, so if you would like to set up a time to chat about filing the documents, please feel free to contact us. --jcf

There has been a great deal of recent internet discussion about Bruce Jenner's transition to a new identity as Caitlyn. I want to congratulate Caitlyn Jenner and address some questions about transgender people and immigration. There has been a small flood of calls today at both the Pasadena and Palm Springs offices of the immigration law offices of Fong & Aquino, in response to the Vanity Fair cover photo and article introducing Caitlyn.

In the bad old days, before Section 3 of the Defense of Marriage Act (DOMA) was struck down as unconstitutional by the Supreme Court of the United States in the 2013 landmark case of US v Windsor, same-sex marriages were not recognized under Federal law. If two men wanted to marry -- even if their marriage could be legally performed in, say, Canada or Massachusetts -- the US government refused to recognize that marriage, and no Federal benefits would attach to that relationship. This included a US citizen wanting to obtain legal resident status (the so-called "green card") for a foreign spouse. A same-sex couple was not recognized, and no green card was possible.

In the case of a relationship with a transgender person, US Citizenship and Immigration Services (USCIS) took a simplistic, it's-just-about-plumbing approach. As long as one spouse had cosmetically male anatomy, and the other had cosmetically female anatomy, then the marriage would be recognized -- no matter how far along the transition might be -- and the marriage would result in a green card for the foreign spouse. This led to a number of unique cases in which a male-female couple would rush to get the green card, and after the green card was issued, the transgender spouse would feel free to finish the transition. Or waiting until the transition was complete, in order that the green card case could go forward. Many other, sometimes difficult, scenarios have played out in my 30+ years of legal service in the community.

Today, because Section 3 of DOMA is quite unconstitutional, these types of difficult situations are no longer necessary. A US citizen can today apply for a foreign spouse, whether that spouse is male or female; gay, lesbian, or straight; transgender or cisgender. Period.

As the anniversary of US v. Windsor comes at the end of June, let us remember where we have been and celebrate the progress that has been made for the community. If you should have questions regarding a getting a green card through marriage, please contact a competent immigration attorney to have your questions answered. --jcf

The tidal wave of the first same-sex marriage (SSM) cases has passed, and I'd like to share some very brief observations. Fong & Aquino, with offices Hollywood and Palm Springs, fielded over 150 inquiries about SSM and has undertaken representation for some 100 cases this year. Some things I've noticed:

* Officers are as interested in how the couple met in the case of same-sex couples, as they are for opposite-sex couples. They have even asked the name of the WEBSITE where some couples have met.

* Some officers are puzzled about why some family members might not know about the marriage.

* A significant age difference between the spouses remains a concern for some officers.

There have only been two instances of possible bias. In one case, the officer kept referring to one wife as "she" and the other wife as "husband." We kept correcting the officer. His excuse was, "I'm sorry; this is new to us." To be fair, he did not seem particularly hostile or homophobic, but the error was very irritating. And the case was approved on the spot.

The second case took place in Orange County, California. The officer said that for same-sex marriages, he was "concerned about a Chuck and Larry situation," apparently referring to a 2007 Adam Sandler comedy in which two apparently straight men get married. The movie was full of stereotypes of gay men. I pointed out to the officer that his comment indicated he was assuming that the case was fraudulent. In the end, although additional documentation unrelated to the bona fides of the marriage was required, the case was approved with no fuss.

There are no broad, sweeping generalizations to be made at this point, Most of US Citizenship and Immigration Services here in California are to be commended for doing such a professional job to date.

If you have questions about a family petition or a spouse petition, feel free to contact the office. --jcf

On Tuesday, 26 June 2013, the Supreme Court of the United States overturned the constitutionally discriminatory Defense of Marriage Act (DOMA). A US citizen or Legal Permanent Resident may now submit an immigration petition for a same-sex spouse. This is historic news and a true change in the way immigration law will be applied to the community of immigrants. The telephone has not stopped ringing at either the Palm Springs office or the Los Angeles.

Even as we consider moving forward for the paperwork to unite our families, some things to keep in mind.

Among the key requirements is MARRIAGE. Civil unions, domestic partnerships, civil registrations, PACS, and other forms of "marriage lite" are NOT recognized. Only marriage: plain, old-fashioned, garden-variety marriage. The list of jurisdictions where same-sex marriages are currently permitted includes New York, Washington state, Massachusetts, and nine other jurisdictions plus the District of Columbia; and Argentina, France, Canada, South Afrika, and a significant number of other nations. A good list can be found here.

Here in California, Gov. Jerry Brown has ordered the state to begin issuing marriage licenses to same-sex couples as soon as the stay is lifted on the lower court order. This should happen within about 30 days.

For immigration purposes, the marriage must be legal where it was celebrated. As long it is as it is legal where it was performed, it can be used for legal permanent resident ("green card") purposes. Processing time is currently about four to six months, from the time of the application until the interview in Los Angeles or Riverside California. For those interviewing outside the United States, at US embassies and consulates, the process will take approximately 8 months, start to finish. Fiancé(e) cases are a bit more complex and will take an additional few weeks.

Not surprisingly, all of the other immigration law issues, such as criminal records, financial sponsorships, prior deportations, unlawful status, and so on, still apply to same-sex couples, so it would be wise to set up a time to chat as soon as possible with an experiences immigration attorney.

After 30 years of counseling and advising couples from the gay, lesbian, bisexual, and transgender communities, it is thrilling to be able to counsel our community through this momentous change and opportunity in the law.

This has been a long time coming. If you or anyone you know might benefit from the court ruling, please do not hesitate to contact the office. Meetings can be arranged at either the Los Angeles office or the office in Palm Springs.

As an immigrant advocate for gay and lesbian couples, I regularly receive calls at my Los Angeles and Palm Springs offices about whether same-sex marriage is available in x, y, or z country of the world. The legislature of New Zealand yesterday approved same-sex marriage. The measure must be given royal assent by the Queen's representative, the Governor-General. This assent is typically automatic, a formality.

The number of countries which now or are on the verge of legalizing same-sex marriage is growing week by week. Pretty soon, it will cease to be news for me to post on this blog. However, please keep in mind that the United States' Defense of Marriage Act (DOMA) STILL denies recognition of same-sex marriages for any US government benefits.

It is NOT YET the time to file a green card application (immigrant visa application) for your same-sex spouse.

If you have questions about US immigration and a nontraditional family or a same-sex couple, please do not hesitate to contact me. --jcf

Yes, yes, yes. Some information about the proposed Comprehensive Immigration Reform was released today.

As an immigration lawyer with over 30 years of experience, my phones here in Los Angeles and in the Palm Springs office have been ringing off the hook. I already have over 100 emails from France and the UK. The message is always the same, "J Craig Fong, is there anything for me in the new immigration law?" Everyone wants to know the recently-released details for the proposed Comprehensive Immigration Reform (CIR). Enough! Assez! ¡Basta!

FIRST: I am studying and thinking about the proposal now.

SECOND: There are NOT many details in the limited release of information. It is more of a set of goals and principles.

THIRD: The actual legislative language is NOT yet available, so I can't give you answers to specific issues.

FOURTH: I will send up a blog when I have a better idea of each set of provisions, but not right now, because I do not want to mislead anyone if I incorrectly analyse something which is so new and vague.

MOST IMPORTANT for you and for your friends: DO NOT RUSH OFF TO "REGISTER" WITH A NOTARIO!! Keep your money safe. At this time, there is NOTHING to register for. There is NO new program. There are NO immigration benefits available, because this is just a proposal. No one even knows whether this will pass through the Congress. Be patient. Let the details become clearer. Wait for President Obama to sign it into law. For now, just wait.

I wrote a few weeks ago that the French National Assembly voted to approve same-sex marriage. Today, the French Senate passed a bill approving same-sex marriage, also. In the coming weeks, the two bills will undergo a "second reading" to reconcile minor differences in language. It is expected that the final bill will pass and same-sex marriage could be a reality throughout France by mid-Summer.

Yesterday, I noted that the Legislature of Uruguay also passed a same-sex marriage bill, and early in February, the United Kingdom was moving in the same direction.

In my work as an immigration lawyer and advocate on gay and lesbian issues, clients always ask me whether a legal marriage in, say, Canada or Netherlands would qualify a foreigner to apply for US Legal Permanent Residence through a petition by a US citizen spouse. At the present time, even with so many countries of the world recognizing and approving same-sex marriages, the United States still labors under the effects of §3 of the Defense of Marriage Act (DOMA) which prohibits the US from granting any benefits, including green cards, based on a same-sex marriage.

A few weeks ago, the Supreme Court of the United States (SCOTUS) heard arguments in a case that has the potential of invalidating §3 of DOMA. If this happens -- and I am cautiously optimistic -- then the US citizen in a legally-married same-sex couple would be eligible for apply for legal resident status for his/her spouse. The SCOTUS decision is expected by 30 June 2013.

If you have questions about non-traditional families, same-sex marriage, and immigration, please contact my office to set up a consultation. --jcf

A large majority of the Uruguay Legislature today approved a bill legalizing same-sex marriage. The bill has the support of the country's president, José Mujica, who has said that he will sign the bill in the next two weeks. Uruguay is the second country in Latin America (the other is Argentina) to legalize same-sex marriage, the third to do so in the Western Hemisphere (the other is Canada), and the twelfth nation to do so in the world. By some reports, marriages could begin as soon as July 2013.

Which brings us to the question: when will the USA take this step?

In our Federal system, states have determined individually the rules regarding the issuance of marriage licenses. Nine states, plus the District of Columbia, current permit same-sex marriage. The recently-argued case of Hollingsworth v. Perry places the question squarely before the Supreme Court of the United States (SCOTUS). However, it is not clear to me that SCOTUS will make a broad ruling legalizing same-sex marriage nationwide. It seems more likely that SCOTUS will simply take the view the each state is entitled to determine the issue for itself. In other words, SCOTUS will probably not announce a broad, universal right to same-sex marriage throughout the USA. They could, but I view the prospect as unllikely. Finally, SCOTUS could avoid the question entirely by saying that the Hollingsworth case should not have been brought to the Supreme Court in the first place. A decision is expected before 30 June 2013.

If you have question related to same-sex marriage and immigration, please feel free to contact my office for a consultation. --jcf

In the past few days, my phones in both Los Angeles and Palm Springs have been ringing; everyone wants to know if it is now possible for gay or lesbian US Citizens to successfully petition a green card for their foreign spouses. As an advocate for nontraditional families for over 30 years, I am hopeful that the time is coming soon. BUT NOT YET.

There is NO PROCESS to get a green card for a same-sex married couple at this time. Applications will likely be held in abeyance; in the worst case, the foreigner may be thrown into deportation proceedings. In my view, it's too risky right now, unless there are some exceptional circumstances.

Finally, and most unpredictably, the Supreme Court of the United States will be deciding the case of US v. Windsor which may also provide a mechanism for US citizens to petition their same-sex spouses. I'll be writing more about the Supreme Court cases in another blog.

If you'd like to discuss an immigration matter for your family, please contact me. --jcf

Close on the heels of similar actions last week in the British Parliament, the French National Assembly yesterday approved a bill to legalize same-sex marriage throughout France. The initial vote was 329-229, in favor of legalization. The bill must still be approved by the French Senate, although most people believe that approval is likely in the Senate as well.

Because of my 30 years of advocacy here in Los Angeles and Palm Springs as an US immigration attorney on behalf of nontraditional families, I receive a lot of inquiries from gay and lesbian US citizens who wish to marry partners from the UK or France. These upcoming changes are good news for couples, but only to a point.

Gay and lesbian Americans who may wish to marry a French or UK citizen must remember that the Defense of Marriage Act (DOMA) is still the law in the USA. Even though French government may allow same-sex marriages sometime soon, the US does not currently provide any immigration benefits based on a same-sex marriage. We must wait to see whether any upcoming changes in US immigration law will provide benefits to same-sex couples.

If you or your partner or spouse would like to discuss immigration options, I look forward to talking with you. --jcf

The UK parliament yesterday approved a bill legalizing same-sex marriage. The legislative process is not yet complete, but the 400-175 vote in favor of the bill is a strong indication that the next vote in the Commons, and a vote in the House of Lords, will be a favorable one for gay men and lesbians who wish to marry in the UK.

Gay and lesbian Americans who may wish to marry a UK citizen must remember that the Defense of Marriage Act (DOMA) is still the law in the USA. This means that even though Her Majesty's government may soon allow same-sex marriages, the US does not provide any benefits or recognition under US law based on a same-sex marriage. And that includes immigration benefits. As an immigration lawyer who has counseled members of the gay and lesbian community for many years, I wish I could say that our families are recognized by the US government, but for the moment, we must wait to see whether any upcoming changes in US immigration law will provide benefits to same-sex couples.

If you or your partner or spouse would like to discuss immigration options, I look forward to talking with you. --jcf

In my 30 years as an immigration lawyer in the gay and lesbian community, the question I am asked most is, "why can't I bring my foreign partner to the USA? Straight people can get married and bring their spouses! We should have the same rights!" This question has resonated here in my offices in Los Angeles and in Palm Springs. I have been asked the question when I practiced in San Francisco and Chicago. I even get asked the question in Paris and London. The over-simplified answer is the word "marriage."

Under the US Immigration and Nationality Act (INA), the US gives US citizens a "benefit," allowing the spouse of a US citizen to apply for a legal permanent resident card (LPR -- otherwise called "the green card"). Until recently, same-sex marriage (SSM) was quite rare, so the US could hide behind the idea that LPR is only extended to someone married to a US citizen.

Then some enlightened countries began letting same-sex couples get married, and the US was faced with a dilemma: do we apply the law equally and allow these same-sex couples the same rights as other Americans, or do we try to stop them. The result was the Defense of Marriage Act (DOMA).

DOMA is not a part of the immigration law. DOMA simply says that the US government will not provide any benefits based on marriage if the couple is a same-sex couple. And a green card based on marriage is a "benefit."

The US Congress cannot even decide when to have lunch, so the future of CIR is unclear. However, the move to pass CIR is strong in the immigrant community. The gay and lesbian community has never been very skillful in its outreach to communities of color. If ever there was a time for productive dialogue and political-partnering between two groups, this is it.

If you have questions about options legally to immigrate a same-sex partner to the United States, I would be happy to chat with you. --jcf

For over 10 years, immigrants and their families have come to Fong & Aquino and asked me about any possible changes to the immigration law that will help them. I hear, from clients in Los Angeles, Palm Springs, Canada, the United Kingdom, France, and many other places that they need some change in the immigration law to allow them to stay in this country and pursue their dreams, work productively, be free from persecution, and most importantly, to be united with their families.

For the first time since 1990, a major change in the immigration law may be coming.

You probably already know that the US Congress has been deadlocked for over 4 years, with the members (mostly) of one political party refusing to cooperate with the White House. As a result, a Comprehensive Immigration Reform (CIR) bill has never been seriously discussed. With the results of the recent re-election of President Barack Obama, and (many) members of the Republican party realizing that it is in their best interest to help immigrants, CIR may be on its way. What will it do?

No one knows!

So why am I writing this blog?

For the next few months, you will be reading many ideas, proposals, suggestions, conditions, demands, arguments, and so on about CIR. For right now, you need to know that NOTHING has been decided. Most immigration law observers believe that we will have some real, concrete details before the end of February. Some possibilities:

* A pathway to legalization, or an earned path to residency, for those undocumented people who are already here. This possibility is likely to have a requirement for paying back taxes, paying a fine, and learning English or taking a basic English test. We do not know any more right now.

* A category of immigration for the same-sex couples, where one partner is a US citizen and the other is a foreigner. This possibility is likely to require proof that the couple has been in an exclusive, emotionally inter-dependent relationship for a minimum period of time -- likely, two years. We do not know any more right now.

* A large database of all persons eligible to work in the USA. In order for ANYone get get a job, employers may be asked to register with or check this database to verify that employees are legally eligible to work in the USA. Will they do such checking for foreigners only, or will this include US citizens? We do not know any more right now.

* A big push for even stronger border control, both at the Southern Border with México, the Northern Border with Canada, and at all airports. This might include enhanced exit control, also, to record not only who enters the USA and when, but also who exits. We do not know any more right now.

Remember: nothing has been decided right now. There is no new law right now. You do not need to register. You do not need to sign up. You do not need to file any form right now.

There are many notarios and others who are not licensed to practice law. In order to get money from you, they will try to scare you into thinking that you might do something now in order to preserve an immigration benefit. Please remember: there is NO new law right now.

Good news is coming. Be patient.

If you have questions, if you would like to consult with me, please feel free to give me a call, and I would be happy to discuss your situation or that of your family. --jcf

After practicing law together for almost one decade, Eileen Chun-Fruto and I have evolved into different forms of law practice. I will continue to practice immigration and nationality law, handle consultations, and do my blog here at my offices in Los Angeles and in Palm Springs. The firm name is now, "Fong & Aquino." You can reach me, as before, at Tel: +1.323.769.8187 -- this is the same phone number you have used in the past. My new e-mail address is: j@jfonglaw.com . My webpage is now: http://www.jfonglaw.com .

My practice will continue to focus on families, waivers, small business investors, intra-company transferees, and investor visas. Also, as I have been for all 30 years of my law work, I remain very devoted to counseling, advocating for, and working with non-traditional families.

Eileen Chun-Fruto now practices immigration law with a law firm in downtown Los Angeles. She can be reached at echun@fongandchun.com.

Law offices change forms for many reasons. Eileen and I have parted as friends and colleagues. If for any reason you have questions about your case with the former office of Fong & Chun, llp, you are free to contact either one of us. We are now -- as we always were before -- committed to high quality immigration law work, where each case is treated individually and with respect for your family, your business, and your concerns. --jcf

The immigration attorneys at Fong & Aquino -- with clients from the Coachella Valley and Palm Springs, to Southern California and Los Angeles, and throughout the world -- have been closely watching the implementation of the prosecutorial discretion policy as it affects gay men, lesbians, and persons in nontraditional family relationships.

As readers of this blog may recall, in the latter half of 2011, the Obama administration instructed its enforcers of the immigration laws (also known as the Immigration and Customs Enforcement branch of the Department of Homeland Security) to consider exercising its discretion to dismiss "low priority" deportation and removal cases. The "Morton Memo" indicated that the following criteria may be viewed as positive factors:

Circumstances of arrival - especially if the person came to the US as a child
Pursuit of education - if they have graduated from high school in the United States and/or are pursuing higher education
U.S. Military service
Ties to the U.S., including family relationships
Pregnant or nursing women
Age, especially for minors and the elderly
If the person is a primary caretaker of another person with a severe illness or disability
Persons who are likely to be granted temporary or permanent status because they are an asylum seeker, victim of domestic violence, human trafficking, or other crime

In the months that have followed, many questions were raised and Immigration and Customs Enforcement continues to tweak the memo's implementation. However, one question that seems to be resolved is that the government appears to recognize that an individual in removal proceedings who is in a bona fide same-sex relationship may be deserving of prosecutorial discretion.

Earlier this month, a gay Costa Rican man was spared from deportation based in part due to his 2008 marriage to a U.S. citizen. Last year, an Immigration Judge in New Jersey granted a reprieve in the deportation proceedings against a Venezuelan man married to a U.S. citizen. However, the policy does not appear to be uniformly applied, as a couple in Philadelphia still faces the prospect of separation.

The immigration attorneys at Fong & Aquino cannot stress enough: This is not "amnesty." There is no new program for legalization here. The government is not providing any lawful permanent resident status or employment authorization. However, in some circumstances, the Government IS viewing a same-sex marriage as a positive factor and allowing some non-traditional families to stay together inside the United States.

If you are a gay man or lesbian or in a nontraditional family relationship, or if you or a loved one is facing the prospect of removal from the USA, you should consult with the immigration attorneys at Fong & Aquino. We have offices in Los Angeles and Palm Springs. Attorneys at our firm have served the gay and lesbian community with pride for over a quarter of a century. --jcf & ra